Bill Tieleman is one of BC's best known communicators, political commentators and strategists.
Bill writes a politics column Tuesdays in 24 Hours newspaper and The Tyee online magazine.
Bill has been Communications Director in the B.C. Premier's Office and at the BC Federation of Labour.
Bill owns West Star Communications, a consulting firm providing strategy and communication services for labour, business, non-profits and government.

Lawyers for David Basi, Bob Virk and Aneal Basi appeared stunned by the submission by Berardino, telling Bennett they will make arguments against their exclusion when the application is made Dec. 3. The media and public would also be excluded.

And a defence lawyer described thousands of e-mails obtained from key Crown witness and former provincial lobbyist Erik Bornmann as "out of this world."

There was no discussion of who the secret witnesses who do not want to be identified were and outside court Berardino and defence lawyers declined all comment on the issue, citing the justice's ruling in court.

Berardino told reporters after the hearing that he cannot comment in any way on the in-camera secret witness application.

When asked how reporters should find out how to deal with or challenge the possibility of being excluded, Berardino said: "I think like every good citizen, you should consult a lawyer."

Kevin McCullough, defence counsel for Bob Virk, had little more to say.

Bennett had earlier told Berardino, before the request to exclude the defence counsel was made, that the in-camera application would be heard in court on December 3.

"You have to notify the media if you intend to hold an in-camera hearing," Bennett said.When Berardino seemed to object, Bennett asked him if there was "another issue."

Berardino then passed Bennett a previous case judgement and asked her to read "paragraph 46."

"Yes, there is another issue," he said.

After reading the document Bennett replied: "I understood you were talking about people we've discussed before. This is something else."

The most likely case Special Prosecutor Berardino was referring Bennett to is Named Person v. Vancouver Sun at the Supreme Court of Canada, which rendered a judgement on Oct. 11, 2007. Several media outlets joined forces in an effort to identify a secret witness.

That case arose out of the investigation into the bombing of Air India Flight 182 that killed all 329 aboard on June 23, 1985.

The issue in question was whether a police informant could give testimony without being identified. That informant was also fighting deportation to a foreign country to face criminal charges there.

McCullough told Bennett that the application to exclude defence lawyers from the in-camera hearing would be opposed.

"If he [Berardino] intends to go in camera without defence counsel, you'll hear arguments from me," he said.

Then a very interesting interjection occurred.

Michael Bolton (legal counsel for David Basi) to Bennett: "We'll deal with defence counsels' right to be present."

McCullough: "I think we've figured it out...."

Bennett: "No, just don't say anymore."

Bornmann e-mails 'out of this world'

The secret witness issue wasn't the only new ground broken in the hour-long session.

In court, McCullough told also Bennett that e-mails from key Crown witness Bornmann, which have recently been disclosed to the defence, are highly relevant and should have been previously provided.

"The Bornmann e-mails are out of this world. There are thousands of them," McCullough said. "How these materials were not disclosed before June 4, 2007 will have to be dealt with -- I'm trying to be constructive here."

Michael Bolton told the court the Bornmann e-mails were highly relevant to their defence, which in part argues that Basi and Virk, both former provincial government ministerial assistants, were merely following the orders of higher ups in government.

In the Basi-Virk case police allege Bornmann bribed Basi and Virk to obtain confidential government documents related to the $1 billion privatization of BC Rail in 2003. Basi and Virk face breach of trust and fraud charges, while Aneal Basi, Dave's cousin and a former government communications officer, faces money laundering charges alleged related to the payment of bribes."The e-mails pertain in particular to the conduits of information between the premier's office inner circle and the Ministries of Finance and Transportation and the Pilothouse lobbyists," Bolton said. "Passing information to key members of the premier's inner circle. This is very critical stuff and we don't know how much more of it there is."

'Confidential informer'?

But it was the issue of excluding even defence lawyers from an in-camera hearing that drew the most attention in court.

The "Paragraph 46" that Special Prosecutor Berardino referred Justice Bennett to was almost certainly from Named Person v. Vancouver Sun. That paragraph and the ones immediately before and after, read as follows:

D. The Procedure to Be Followed

45 The interface between the informer privilege rule and the open court principle in the context of a hearing where a party claims to be a confidential police informant must at the same time allow for the protection of the identity of the informer from any possibility of disclosure and the maintenance of public access to the courtroom to the greatest extent possible.

In order to best illustrate how this can be achieved, I will in what follows set out a procedure to be followed in a case such as the one before the Court, where an individual who is in the midst of criminal or quasi-criminal proceedings for some reason discloses to the court his or her status as a confidential informer.

46 In such a proceeding, the parties before the judge will be the individual and the Attorney General of Canada (or the Crown). If the individual wishes to make a claim that he or she is a confidential informer, he or she should ask the judge to adjourn the proceedings immediately and continue in camera.

The proceedings will proceed in camera, with only the individual and the Attorney General present, in order to determine if sufficient evidence exists to determine that the person is a confidential informer and therefore able to claim informer privilege.

47 While the judge is determining whether the privilege applies, all caution must be taken on the assumption that it does apply. This means that under no circumstances should any third party be admitted to the proceedings, and even the claim of informer privilege must not be disclosed. The only parties admitted in this part of the proceeding are the person who seeks the protection of the privilege and the Attorney General. It is the responsibility of the judge at this stage to demand from the parties some evidence which satisfies the judge, on balance, that the person is a confidential informer.

Once it has been established on the evidence that the person is a confidential informer, the privilege applies. I cannot over-emphasize the importance of this last point. The judge has no discretion not to apply the privilege: Bisaillon v. Keable, at p. 93. If the person is an informer, the privilege applies fully.

That leaves some obvious questions -- is there a "confidential informer" who supplied police with evidence of wrong doing? And who is that person? Are they involved in other criminal activities, as the Air India informant was?

And it should also be noted that there appear to be two separate applications for in-camera witnesses, with previous mention of applications coming at the last pre-trial hearing, Nov. 16.

There was no mention of excluding defence counsel at that time and Justice Bennett clearly appears to say that there are different applications to be heard.

Pre-trial calendar

The pre-trial hearing also dealt at length with ongoing disclosure of evidence problems that have delayed the trial several times.

Bennett ended the court session by outlining the upcoming schedule of pre-trial hearings.

Starting Dec. 3 the in-camera application will be heard after, presumably, dealing with the issue of exclusion of defence counsel, media and the public. Bennett is expected to hear media arguments against banning reporting and attending the hearing.

Starting Dec. 10 there will be hearings on the issue of provincial government documents where solicitor-client privilege is being claimed.

Starting Dec. 17, depending on the earlier hearings, there may be meetings between the Special Prosecutor and the defence to resolve other disclosure issues.

And starting Jan. 7, 2008 the court will hear arguments on "vets" of the BC Rail and federal Department of Justice documents -- that is, what information should or should not be disclosed to the defence and its relevance to the case.

Of course, one other important date should be mentioned -- on Dec. 28 this case celebrates its 4th birthday.

On Dec. 28, 2003 the B.C. Legislature was raided by police in an unprecedented action that has yet to result in a trial.

Also known as "Basi-Virk," it stems from an unprecedented search of the B.C. legislature on Dec. 28, 2003, that police at the time ominously linked to drug dealing, organized crime and corruption said to extend to the highest levels of government.

Subsequently it became clear the search was in fact connected to the $1 billion privatization of B.C. Rail by BC Liberal Premier Gordon Campbell.

Two former ministerial aides -- David Basi and Bob Virk -- now face charges of breach of trust and fraud for allegedly passing confidential government documents on to lobbyists representing OmniTRAX, one of the corporations that bid for B.C. Rail. Aneal Basi, a former government communications aide and cousin to David Basi, faces money laundering charges.

The case has exposed the extensive political connections between the B.C. and federal Liberal parties, provincial lobbyists, the leadership campaign of former Liberal prime minister Paul Martin and even the RCMP.

The B.C. legislature raid case is currently in the pre-trial defence application stage at B.C. Supreme Court. The trial itself is expected to last six months or more and call dozens of witnesses, including powerful former B.C. Liberal cabinet ministers, political staff, lobbyists and many others.

2 comments:

A. G. Tsakumis
said...

This whole matter is an utter disgrace.

It's brutally obvious what's happening here: The Victorian Grits and the Martinite thugs (who currently envelope Dion the Dunce) are just aching for this whole sordid mess to be tossed out of court. Both sides would benefit, politcally, of course, if it did.

But what about us?

I am not yet too jaded to think that democracy still has a role to play in government, that we all deserve an even playing field.

Justice Bennett has a really tough road to hoe here.

Next time someone complains about O.J. getting off in '94 and how a mockery can be made of the American system of jurispurdence.......

Remember how you wrote about Aquaterra hiring Jamie Elmhirst and then dumping them once they were made of the facts of Mr. Elmhirst's role in the Leg Raid scandal?

Well it turns out that Aquaterra have a new registered lobbyist of choice. Mr. David Faber.

Mr. Elmhirst may claim that his 3 month contract concluded, it is clear that Aquaterra still required a lobbyist. Armed with the truth about the former Pilothouse partner, Aquaterra chose someone else - for a one year term.

Maybe the people who wish to testify in secret have more to do with the lobbyist rather than the defence?

Bill Tieleman and Senator Larry Campbell, former Vancouver mayor

Jim Sinclair, Cindy Oliver, Ken Georgetti and Bill Tieleman

Bill Tieleman's coverage of the Basi-Virk/BC Legislature Raid Case praised by other journalists:

"This outstanding piece of journalism, in The Tyee, is the work of a journalist who has been deeply involved with this issue from the start and this article should be passed on as far and wide as possible."

"Bill Tieleman from 24 hours . . . . If you want to know about this trial and about this case, you have to read his blog – I mean, that’s just all there is to it – it’s required reading if you want to understand the BC Legislature Raid situation."

- Mike Smyth, columnist, The Province

"The Basi-Virk case....you’ve probably sat through more of these hearings and gone through more of the files and written about it than any other journalist in the province."

- Bill Good, host, The Bill Good Show, CKNW/Corus Radio Network

"Tieleman ...has done a first-rate job covering the trial."

- Paul Willcocks, columnist, the Victoria Times-Colonist

"Tieleman, who marries a considerable journalistic talent with one of the smartest political minds in the province, has been writing more web-exclusive material. And his coverage of the Basi-Virk trial is a must-read -- whether you're an insider or an outsider."

"24 Hours, the Vancouver paper that has been leading the coverage, as well as the hints of conspiracy in B.C."

- Norman Spector, columnist, Globe and Mail

"Although the major media in this circumstance has been giving the case significant coverage, Tieleman's reports on his blog have been outstanding.

The entire cut and thrust of legal wrangling and arguments has been covered and is accompanied by considered analysis.....His blog site coverage of the Basi-Virk trial is the most in depth treatment of one of British Columbia's biggest political scandals."

- Bill Bell, columnist, The North Shore News

"Mr. Tieleman has published online dispatches which, freed from the limitations of newsprint space or broadcast time, can run at length. They also remain available for those select readers who become obsessed with a case also known as Railgate.....

In another bizarre twist to a story with no shortage of them, Mr. Tieleman went to work one day in December only to discover his office had been ransacked. Bookcases had been tipped over and papers strewn, but nothing was missing.

To top it off, a press kit for the self-published novel The Raid, written by a retired military officer in Metchosin and featuring on its cover a photograph from the 2003 police raid, had been left in a conspicuous place."

- Tom Hawthorn, columnist, The Globe and Mail

Nobody has followed the Basi-Virk affair over its past five years with greater diligence than local journalist, Bill Tieleman....Tieleman deserves our thanks, a fistful of journalism awards and some merit citation for citizenship.